MU Consulting Services Terms and Conditions
The MU Consulting Services Terms and Conditions hereinafter set forth, as amended from time to time (these “MU Terms and Conditions”), form a part of the MU Consulting Services Agreement between Client and Company (the “MU Agreement” and together with these MU Terms and Conditions, this “Agreement”) and are hereby incorporated by reference into the MU Agreement, without the need for further action. All capitalized terms set forth herein shall have the meaning set forth in the MU Agreement unless expressly provided to the contrary
herein. These MU Terms and Conditions were last updated on March 14, 2016.
A. Payment Terms
Company is hereby authorized to charge Client’s credit card or bank account on file with Company for any MU Services Fees due hereunder. Client shall promptly execute and return to Company any electronic payment authorization forms that Company may provide to Client to further evidence such authorization. Company shall invoice (each, an “MU Invoice”) Client for all applicable MU Service Fees. Unless otherwise specified in an MU Invoice, all amounts specified in a MU Invoice are due upon the issuance of such MU Invoice by Company.
The MU Service Fees are exclusive of all local, state, federal and foreign taxes, levies, or duties of any nature (“Taxes”), and all payments to Company are payable in full without reduction for Taxes. Client is responsible for payment of all Taxes, excluding taxes owed by Company based on Company’s income. If Company has the legal obligation to pay or collect Taxes for which Client is responsible pursuant to this Section, the appropriate amount shall be invoiced to and paid by Client, unless Client provides Company with a valid tax exemption certificate
authorized by the appropriate taxing authority.
Unless otherwise explicitly provided in the MU Agreement, the MU Service Fees are subject to change at the end of the Initial Term (as defined below) and each Renewal Term (as defined below) with at least thirty (30) days notice from Company, which notice may be given by the posting of such change on Company’s website, by email or such other means of notice as Company may reasonably employ.
B. Term
Unless earlier terminated as set forth herein, this Agreement shall be effective as of the Effective Date and end on the six (6) month anniversary of the Effective Date (the “Initial Term”). Subject to the terms and conditions of this Agreement, the term of this Agreement shall automatically renew immediately following the expiration, as applicable, of the Initial Term or applicable Renewal Term (as defined below) for an additional monthly term ending on the next monthly anniversary of the Effective Date (provided, that, to the extent that the applicable month does not have a day that is the same day of the month as the Effective Date, then such monthly anniversary shall be deemed to occur on the last day of such month) (each such additional term, a “Renewal Term” and, collectively, with the Initial Term, the “Term”). Notwithstanding the foregoing, this Agreement shall be terminable by Client by providing at least ten (10) days written notice to Company prior to the end of the Initial Term or then current Renewal Term and such termination shall be effective on the last day of the Initial Term (if such notice was provided at least ten (10) days prior to the end of the Initial Term) or the last day of the then current Renewal Term. Client acknowledges and agrees that this Agreement may be terminated by Company at anytime, for any reason, in its sole discretion by providing at least ten (10) days prior written notice to Client. Section 3 of the MU Agreement and Sections A, B, C, D, F, G, H, I, J, K, L, M, N, O and P of these MU Terms and Conditions shall survive the expiration or termination of this Agreement. Termination of this Agreement for any reason shall not affect Company’s right to recover damages for events occurring before termination.
C. Disclaimers;
Limitation of Liability.
COMPANY DOES NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE MU SERVICES. COMPANY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
THE MU SERVICES ARE MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
COMPANY SHALL NOT BE LIABLE IN ANY WAY FOR LOSS OR DAMAGE OF ANY KIND RESULTING FROM THE MU SERVICES. COMPANY MAKES NO CLAIM OR REPRESENTATION REGARDING, AND EXPRESSLY DISCLAIMS RESPONSIBILITY FOR, THE ACCURACY, QUALITY, OR RELIABILITY OF THE MU SERVICES OR THE RESULTS OF THEIR USE.
COMPANY AND ITS REPRESENTATIVES MAKE NO GUARANTIES, REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE COMPLETENESS OR ACCURACY OF THE INFORMATION PROVIDED PURSUANT TO THE MU SERVICES. COMPANY AND ITS REPRESENTATIVES MAKE NO GUARANTY OF ANY KIND THAT CLIENT OR ANY OF THE NAMED PROVIDERS WILL RECEIVE MEDICARE OR MEDICAID INCENTIVE PAYMENTS OR ANY OTHER
GOVERNMENT FUNDS OR AVOID ANY GOVERNMENT IMPOSED PENALTIES. THE INFORMATION PROVIDED BY THE MU SERVICES IS NOT INTENDED AS LEGAL ADVICE AND ALL LEGAL INQUIRIES ABOUT TOPICS ADDRESSED BY THE MU SERVICES SHOULD BE DIRECTED TO CLIENT’S
LEGAL COUNSEL. COMPANY DISCLAIMS LIABILITY FOR ANY DAMAGES OF ANY NATURE WHATSOEVER, DIRECTLY OR INDIRECTLY, RESULTING FROM CLIENT’S USE OF OR RELIANCE ON ANY INFORMATION PROVIDED BY THE MU SERVICES.
IN NO EVENT SHALL COMPANY’S AND ITS PRESENT AND FORMER SUBSIDIARIES’, AFFILIATES’, DIRECTORS’, OFFICERS’, EMPLOYEES’, AND AGENTS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE MU SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE MU SERVICE FEES ACTUALLY PAID BY THE CLIENT TO COMPANY UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.
IN NO EVENT SHALL COMPANY OR ITS PRESENT OR FORMER SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, BUSINESS INTERRUPTION, OR COST OF COVER, EVEN IF COMPANY OR ITS PRESENT OR FORMER SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF CLIENT IS LOCATED IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO IT, AND CLIENT MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THIS AGREEMENT APPLY TO CLIENT TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH CLIENT AND ITS NAMED PROVIDERS ARE LOCATED.
D. Indemnity
Client shall indemnify and hold harmless Company and Company’s affiliates and Company and Company’s affiliates’ respective officers, directors, employees and agents, from and against any and all damages, liabilities, penalties,
interest, fines, losses, costs and expenses (including reasonable attorneys’ fees and costs), which arise from any claim or allegation arising, directly or indirectly, out of or relating to the MU Services.
E. Client Responsibilities
In connection with the MU Services, Client will: (i) provide qualified personnel who are capable of performing Client’s duties and tasks with respect to applicable MU Services; and (ii) perform Client’s duties and tasks under this Agreement and such other duties and tasks as may be reasonably required to permit Company to perform the MU Services. Client will also make available to Company any data, information and any other materials required by Company to perform the MU Services, including, but not limited to, any data, information or materials specifically identified in this Agreement (collectively, “MU Client Materials”). Client will be responsible for ensuring that all such MU Client Materials are accurate and complete.
F. Ownership
Company will exclusively own all rights, title and interest in and to any software programs or tools, utilities, technology, processes, inventions, devices, methodologies, specifications, documentation, training manuals, techniques and materials of any kind used or developed by Company or its personnel in connection with performing the MU Services (collectively “MU Company Materials”), including all worldwide patent rights (including patent applications and disclosures), copyright rights, moral rights, trade secret rights, know-how and any other intellectual property rights therein. Client will have no rights in the MU Company Materials.
G. Confidentiality
Except as expressly permitted in this Agreement, Client agrees to hold Company’s Confidential Information (as defined below) in strict confidence and not disclose such Confidential Information to any third parties. Notwithstanding the above, Client may disclose Company’s Confidential Information upon the order of any competent court or government agency; provided that prior to disclosure, to the extent possible, Client shall inform Company of such order
and shall reasonably cooperate with the efforts of Company, at Company’s expense, to obtain a protective order or other action to protect the confidentiality of the Confidential Information. It is understood and agreed that in the event of a breach of this provision damages may not be an adequate remedy and Company shall be entitled to injunctive relief to restrain any such breach, threatened or actual without the necessity of posting a bond or other security. “Confidential Information” shall mean the MU Company Materials, information that concerns the management and business of Company, the contents and terms of this Agreement, the business relationships and affairs of Company, the internal policies and procedures applicable to Company’s personnel and the formulation of strategies and policies by Company. It also includes displays, designs, descriptions, procedures, formulas, discoveries, inventions,
specifications, drawings, sketches, models, samples, codes, improvements, concepts, ideas and past, present and future research, development, business activities, products or services and any other information provided by Company to Client regardless of whether it is identified as confidential at the time of disclosure. The term “Confidential Information” shall not include any information which: (i) is in the public domain at the time of disclosure or
enters the public domain following disclosure through no fault of Client, (ii) Client, through competent evidence, can demonstrate knowledge prior to disclosure, (iii) is disclosed to Client by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality or (iv) is independently developed by Client without reference to Company’s Confidential Information as evidenced by the written records of Client.
H. Other Services
Nothing in this Agreement will be deemed to restrict or limit Company’s right to perform similar services for any other party or to assign any employees or subcontractors to perform similar services for any other party. Client acknowledges that Company may engage subcontractors to perform certain of the MU Services.
I. Relationship of the
Parties.
This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between Client and Company and the status of the parties shall be independent parties to a contractual arrangement. Neither Client nor Company shall have the authority to bind the other party by contract or otherwise.
J. Waiver and Cumulative
Remedies
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated therein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
K. Force Majeure
Company shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to a force majeure event or other circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, cyber war or attack, terrorism, insurrection, sabotage, embargo, fire, flood, tropical storm, earthquake, tornado, hurricane, labor disturbance, interruption of or delay in transportation, unavailability of third-party services, failure of third-party software or services or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the MU Services.
L. Severability
If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be unenforceable, such provision shall be changed by the court or by the arbitrator and interpreted so as best to accomplish the objectives of
the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect, unless the modification or severance of any provision has a material adverse effect on a party, in which case such party may terminate this Agreement by written notice to the other party.
M. Assignment
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, Company shall be permitted to assign this Agreement: (i) to an affiliate, parent company or subsidiary or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
N. Enforcement Costs
If any legal action or other proceeding is brought for the enforcement or interpretation of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees, court costs and all expenses incurred in that action or proceeding and at all levels of trial and appeal, in addition to any other relief to which such party may be entitled.
O. Amendment
No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted.
P. Counterparts.
This Agreement may be executed in one or more counterparts, which may be delivered by fax or other electronic transmission, including email, each of which shall be deemed an original and which taken together shall form one legal instrument.